Court name
Court of Appeal
Case number
110 of 2004

Yungdong Industries Ltd Vrs Roro Services (110 of 2004) [2004] GHACA 32 (28 May 2004);

Law report citations
Media neutral citation
[2004] GHACA 32
Coram
Aryeetey, JA
Aninakwah, JA
Quaye, JA

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL SITTING AT ACCRA

ON THE 28TH DAY OF MAY, 2004 BEFORE ARYEETEY JA,

ANINAKWAH AND QUAYE, JJA

 

HI/110/2004.

 

 

                

    YUNGDONG INDUSTRIES LTD.     ]   …      PLT/RESP/CROSS APP.

                   V E R S U S

     RORO SERVICES                               ]   …      DEFT/RESP.

     EUN MONK BANG & ANOR.            ]   …     CO-DEFTS/APPELLANTS  

    ------------------------------------------------------------------------------------------------

                                                   J  U  D  G  M  E  N  T                               

    ------------------------------------------------------------------------------------------------

  QUAYE, JA:-   The plaintiffs/respondents/cross appellants (herein simply mentioned as plaintiffs) were consignees of goods consigned to them by certain commercial houses in Korea, namely Ilseki Company Limited, Hanla Tyre Company Limited and Leebo Products Limited, who were the consignors.  The goods were consigned through two banks in Ghana, the Standard Chartered Bank and the National Investment Bank. The bills of lading were received by the plaintiffs through the said banks upon the issue or execution of bills of exchange of ninety days duration.  The plaintiffs accepted the terms of payment and actually cleared part of the goods from the defendants, leaving goods in eighteen containers comprising mainly re-treaded tyres to be collected at a later date.

When the plaintiff subsequently approached the defendants/respondents (now simply called  the defendants) for the delivery of the remainder of the goods to them, the latter who were agents of the ship owner or shippers of the goods, informed the plaintiffs that the consignor companies had varied their consignment of the goods in favour of the original co-defendants a company operating in Ghana under the name Seo Kwang (GH) Limited as consignees.  Upon this development the defendants refused to release the remaining eighteen containers of goods to the plaintiffs who then instituted action in the High Court, where they won.  Before the trial ended however, Seo Kwang (Ghana) Limited who had applied and been joined as co-defendants had subsequently discontinued and been struck-out on 30th July 1977 as party to the action.  It was after Seo Kwang (Gh) Limited had withdrawn that the present appellants applied and were joined as 1st and 2nd co-defendants by an order of the court given on 18th March 1998.  After the joinder the Co-defendants/appellants (simply called herein the co-defendants) took part effectively in the trial.  The trial High Court judgment given on 15th May 2002 dissatisfied the co-defendants, hence the herein appeal.

          The appeal was fought on four main grounds, that is:-

  1. The judgment is against the weight of evidence,
  2. The trial judge failed to give adequate consideration to the case of

the Co-Defendants/Appellants;

  1. The trial judge erred in law in deciding that the Co-Defendant failed

to establish any title to the goods, the subject-matter of the suit; 

  1. The trial judge erred in law in deciding that once the Co-defendants

failed to establish their title to the goods, the subject-matter of the

suit, the plaintiff as the consignee is entitled to the goods.

          The notice of the appeal at the instance of the co-defendants was filed on 27th May 2002.  On 15th July of the same year, the plaintiff too filed across appeal principally against the  conduct of the defendants, the carriers of the goods.  The cross appeal will be considered in this judgment after the main appeal of the co-defendants has been addressed and disposed of.

            Arguing the first of the grounds of appeal, to wit: that the trial court judgment was against the weight of evidence led in the trial, Counsel for the co- defendants/ cross-respondents said the trial judge failed to properly appreciate the respective burdens of proof borne by the plaintiffs and the co-defendants and in the result reached the wrong conclusion as to which of the parties was entitled to the imported goods or the proceeds thereof.  The onus was upon the plaintiff to prove that he directly ordered or procured the goods from the three Korea companies Ilseki, Hanla and Leebo respectively.  Counsel directed attention of the court to the cross examination of the plaintiff’s representative by counsel for the co-defendants to support his stance which he submitted contradict the plaintiff’s assertion that he dealt directly with the companies in ordering and importing the goods.  In furtherance of his contention that the judgment was not supportable by the evidence on record, counsel for the co-defendants made reference to what he termed as formal declarations by the manufacturers/consignors of the goods in issue. Those declarations were made allegedly by the consignors before the Consul General                                              

of Ghana in Seoul, Korea after which they were duly notorised before a Notary Public in Korea as to what actually transpired.  Reference was at this stage made to Exhibits 16, 17 and 20 which were tendered in the trial.  Exhibit 16 was from the President of Ilseki and addressed to the Commissioner of Customs and Excise, Ghana.  Exhibit 17 was from the President of Hanla Tyre Company Limited and it was similarly addressed to the Commissioner of  Customs and Excise, Ghana.  The last of the three exhibits, Exhibit 20 emanated from the President of Hanla Tyre Company Ltd. to the Secretary of the Embassy of Korea in Ghana.  The said exhibits under reference sought to confirm their authors as consignors of the goods in issue, and more significantly cancel the plaintiffs as consignee of the goods in favour of the original co-defendant Seo Kwan (Ghana) Limited.  Counsel submitted that these formal declarations by the manufacturers/          consignors put the issue of the purchase of the goods, the role played by the co-defendants and the change of consignee beyond doubt.  He ventured that since the said declarations were not challenged at the trial, the trial judge ought to have accepted them as the truth of how the goods were procured, by whom, and how they came to be consigned to the plaintiffs in Ghana.  He concluded that “ the learned trial judge’s total failure to give due weight and recognition to these significant pieces of evidence from the manufacturers who actually consigned the goods to the plaintiffs (as consignee) in Ghana, constitutes a fatal error of omission in his evaluation of the evidence on record…”

             The next issue in the line of attack by the counsel for the co-defendants in the appeal, which indeed comes under the ambit of the judgment being against the weight of evidence led at the trial, is that the trial judge’s conclusion that the plaintiff was prima facie entitled to the goods is erroneous since the reasons on which the said finding was based were not borne out by the totality of the evidence on record.  Counsel’s conclusions were  based on the following grounds:

  1. Exhibits 16, 17 and 20 completely falsify the conclusion that the plaintiff

ordered the goods directly from the consignors who had been contracted

 by the co-defendants to dispatch the goods to the plaintiffs;

  1. Evidence on record shows that the goods were dispatched to

the plaintiff in Ghana on collection basis, that is to say, the goods                         

                    were not sent to the plaintiffs directly but rather to Ghanaian

                    Banks acting as agents of the consignors in Korea, upon  orders to

                    release the goods to the plaintiffs, as consignee only if the plaintiffs

                    accepted the terms under which the goods were being sold to them.

                    On the face of exhibits F and G ie. the bills of Exchange, the goods

                     were on a ninety days credit.

  1. The plaintiffs only indicated acceptance of the terms.  After they

had collected the shipping documents from the banks, the plaintiffs issued payment drafts which were later dishonoured.  This conduct of the

plaintiffs gave way for the issuance of demand notices upon them

from the banks, as evidenced by exhibits J, Co31-78. 

  1. Counsel for the co-defendants alleges total failure of consideration

and argued that the Managing Director of the plaintiffs company

admitted under cross examination that the plaintiffs had not paid

for the goods even as at the time he was giving evidence before the trial court.  Counsel submitted therefore that the consideration upon which

the plaintiffs purported to accept the goods had totally failed and that

in the absence of due consideration for any of the goods the plaintiffs

can hardly be held to be prima facie entitled to them.

  1. Counsel showed incidents of fraudulent conduct on the part of the

Plaintiffs and submitted that the whole transaction and/of contract stand

vitiated by the alleged fraud.

  1. Counsel next touched on two exhibits S and S1 and said they are only

one each of the several shipping documents which the consignors

had sent through the collecting banks.  The documents by themselves

alone do not constitute any offer of the total quantity of the goods

consigned to the plaintiffs which the plaintiffs can accept to turn them

into owners of all those goods which came in two separate batches

at different times.

(g)  Lastly under this broad heading of the judgment not supported by the evidence led, Counsel for the co-defendants argued that the plaintiffs’ claim constitutes an attempt to enforce an illegal contract. This contention is based on the Company Regulations of the plaintiffs, exhibit N and also the plaintiffs’ agreement with the Ghana Investment Promotion Center, exhibit Q.  It is being contended that upon a careful appraisal of the both exhibit N and exhibit Q, the plaintiffs are not authorised to participate in the Import/Export trade or activity in Ghana.  It therefore flies in the face of these statutory prohibitions if the plaintiffs purported to have entered into relationships with the consignors for  the goods in issue herein, which conduct has been rendered illegal by the plaintiffs own Regulations and by the Statures of Ghana.  Such contract, Counsel concludes is void and unenforceable on grounds of  illegality.

           Counsel for the co-defendants, it is clear, has put in much effort to research and reach an indepth understanding and formulation of the grounds of his appeal and requires commendation for his assistance to the court.  On his part however, Counsel for the plaintiffs has taken very serious issue with the co-defendants/appellants on the submissions made before us.  Counsel for the plaintiffs has taken exception to his learned friend’s submissions, alleging that Counsel for the co-defendants had attempted to argue a ground unknown to his own grounds of appeal, to wit “plaintiffs/respondents’ claim constitutes an attempt to enforce an illegal contract.”  It is being contended on behalf of the plaintiffs that the submission on the supposed illegality of the contract cannot be formulated and argued under the ambit of the judgment being against the weight of the evidence.  An allegation that the contract for sale was illegal was a material fact which ought to be pleaded.  Counsel referred the Court to the statement of defence and counterclaim filed by the co-defendants ands submitted that no illegality of contract had been pleaded hence the co-defendants cannot raise any matter on appeal when that matter was not pleaded and canvassed at the trial, as both sides are bound by their respective pleadings.  He sought in aid the provisions of Order 19 Rule 16 of LN 140 A, where it is provided that  -

                                        

                    “The defendant or plaintiff (as the case may be) must raise by

                       pleadings all matters which show the action or counterclaim

                       not to be maintainable, or that the transaction is either void or

                       avoidable in point of law, and all such grounds of defence or reply,

                       as the case may be, as if not raised would be likely to take the

                       opposite party by surprise, or would raise issues of fact not arising

                       out of the preceding pleadings, as for instance, fraud, statute of

                       Limitations, release, payment, performance, facts showing illegality

                       either by statute or common law, or statute of frauds.”

    Counsel for the plaintiffs submitted that the co-defendants/appellants did not plead illegality, neither did they canvass this matter in the trial court.  He argued further that the documents the appellant relied on were never pleaded.  They came into evidence only while the plaintiffs’ representative was being cross examined, and counsel’s objection to their admission had been overruled.  It is the view of counsel for the plaintiffs that the ground of appeal alleging “judgment against weight of evidence” can only be directed against the findings made by the trial judge which to appellants, could not be supported by the evidence on record.  Counsel referred to the relevant findings of fact made by the trial court and brought them up for critical examination and analysis  to enable this appellate Court better and more clearly appreciate the respective contentions by counsel.

          In the first instance, the trial court stated at page 482 of the record of proceedings as follows:-

“It is admitted by all the parties, that when all the consignment                                   of goods arrived at the Tema Port from South Korea, they were                 consigned to the plaintiff.  The plaintiff when he gave evidence

tendered Exhibits S and S1 which formed the offer for sale by

Ilseki Company and Hanla Tyre Company which offer the plaintiff

accepted.  The plaintiff also tendered in evidence the Bill of Lading Packing Lists,and Commercial Invoices which consigned the goods to him as a                           

result of the contract and finally the plaintiff also tendered in evidence Bills of Exchange obtained from the Standard Chartered Bank and the National

          Investment bank, as agents of the consignor’s Bankers accepted by the

          plaintiff in consideration at the plaintiff’s entitlements to the goods.  On the

          basis adduced by the plaintiff, then, prima facie, he is entitled to the

          goods.

          The court after it had referred to fax messages Exhibits 7, 7A and 8, 8A which had been tendered into evidence by the defendants rendered itself as follows:

           “……..Clearly it would not be safe to rely on these exhibits as proof

             of the lawful change of consignees being relied on by the defendants.”

           The next in the series of findings of fact made by the trial court to which counsel   for the plaintiffs has referred is at page 484 of the record as follows:

            “In those circumstances it is difficult to understand how the co-defendants

              in their individual capacities can claim to be the real owners of the goods

              on the evidence adduced before the court.  Even if the two co-defendants

              are directors of those two companies, those two companies being legal

              entities, are different legal entities from the co-defendants therefore

              without more cannot lay any claim to ownership standing in the name of

              those two companies when those companies especially SEO KWANG [GH]

              LTD. fail to take steps to pursue their rights in respect of goods standing in

              the name of the companies.”

               The last reference appears at page 485 of the record  -

               “It would also appear from the evidence that at the time the goods arrived in

                 Ghana, the companies of which the co-defendants claim to be directors were

                 not in existence.  If that is the position then they have no locus standi to appear

                 in this court to claim the goods in dispute…….The evidence before the Court

                 therefore, supports the claim of the plaintiff to the goods as the original Bill

                 of Lading named them as consignees, and they also proved by their evidence                                    

     That after the arrival of the goods in Ghana, they obtained Bills of

                 Exchange from Ghanaian Banks……..The plaintiffs have proved

                 by evidence adduced before the court that they are entitled to the

                 goods in dispute…….”

          Counsel for the plaintiffs referred to the above excerpts from the trial court’s judgment and submitted that in arriving at the above findings the Judge relied on evidence on record and gave reasons for his findings and that the co-defendants/appellants have not shown any evidence on the record of appeal which contradicts the findings above.  Turning to the submission on the illegality of the contract, counsel for the plaintiffs expressed the view that this was not set out as one of the grounds of appeal.  He referred the court to C1 19 Rule 8(4) which reads:

                   “Where the grounds of appeal alleged misdirection or error

                      in law, particulars of the misdirection or error shall be clearly

                      stated.”

           Counsel therefore submitted that since the appellants’ complaint cannot be deducted from the weight of evidence on record and furthermore the appellants did not set out a ground of appeal on an error of law, the submission of illegality by Counsel for the appellants should not be considered at all.  Counsel referred to rule 8 of C1 19 and argued that even though the said rule 8 of C1 19 permits the court to consider other grounds of appeal not set out in the Notice of Appeal, the rule does not permit the court to rest its judgment solely on a ground not set out in the Notice of Appeal.  It means then, that the court cannot allow the appeal solely on the complaint of illegality of the transaction between the consignors and the plaintiffs as consignee, even if such allegation of illegality is valid.  Furthermore,  the appellants did not raise any issue of illegality in the trial High Court to afford the plaintiffs the opportunity to contest that allegation.

           In his attempt to discredit the submissions of his opponent, Counsel for the plaintiffs launched on attack to debunk the allegation of illegality of the contract and said his opponent’s submissions had no merit.  Counsel sought to demonstrate from the regulations of the plaintiff company  that it was quite legal for the plaintiff to receive                                                             

 the goods, sell them and use the proceeds as payment for timber which was to be sold by

the plaintiffs to the consignors.  Seen in this light counsel submitted, there was nothing illegal in the plaintiffs accepting the goods in furtherance of its authorised business.

          I will pause briefly at this to analyse and comment on the submissions made so far.

In the first place the submission by Counsel for the co-defendants/appellants that cross examination of the plaintiff’s representative showed that contrary to the plaintiffs pleaded case and evidence, the plaintiffs did not transact for the goods directly with the consignors does not find favour with me on the facts and evidence.  The cross examination of the plaintiff did not establish the point of appeal that the plaintiffs did not order the goods direct from the three companies in Korea.  On the contrary, the plaintiff’s representative emphasised and confirmed that the plaintiffs were in contact with the Managing Director of Ilseki; but not the 1st co-defendant in his personal capacity.  If as the evidence shows the plaintiff’s representative dealt with the company Ilseki and imported goods from them, it is most reasonable and in keeping with good business sense for the plaintiff’s representative to keep their business relationship active and alive by continuing to correspond with the Managing Director of the company as he did.  In my candid view, I cannot fault the plaintiff upon the complaint raised by counsel for the appellants.

            Exhibits 16, 17 and 20 are most unambiguous of their intention.  They establish once and for all the real parties to the transaction and this fact has been conceded by counsel for the appellants.  Indeed the consignors and the consignee have been identified by name.  The consignors without doubt are Ilseki Company Limited; Hanla Tyre Company Limited and Leebo Products Limited.  All these three companies were registered and operational in Korea at all times material to the issues of this case.  No mention was made even to the slightest degree from which it can be inferred that SEO

KWANG Limited, Korea was a consignor or faintly connected with the negotiation,

purchase, shipment,  consignment or delivery of the goods.  Evidence however holds weightily that neither the SEO KWANG of Korea nor their Ghanaian counterpart SEO KWANG (Gh) Limited was in existance as at the time the goods were negotiated for, shipped and delivered.  Any claim, subsequent to the arrival of the goods in Ghana which   

sought to attribute the purchase and shipment of the goods to Ghana to SEO KWANG                                     

would only pass as fraudulent.  I will also upheld the submissions of Counsel for the

plaintiffs turning on issues of fact not pleaded, and introducing issues on appeal when those issues had neither been pleaded, raised during the trial nor set out as grounds of appeal.  The law does not equivocate and this will be illustrated presently by reference to one or two decisions of the superior courts of Ghana.  In the case of BASSIL VRS. KABBARA & ANOR. [1966] GLR 102 the Supreme Court was confronted with a case bordering on Order 19 rule 16 of LN 140A [already reproduced above].  The facts from the headnotes were that “the plaintiff, a licensed money lender, brought an action claiming a certain sum of money being principal and interest due from the defendants who pleaded that the whole transaction sinned against various sections of the Money Lenders Ordinance, Cap 176 [1951 Rev].  After the trial and whilst judgment had been reserved, the trial judge invited counsel on either side to address him, on whether the action was not statute-barred under Section 29 of the Money Lenders Ordinance.  The trial judge held that the transaction did not sin against the Ordinance but that the action was statute-barred.  On appeal, the Supreme Court held that

                       “(1)  a plea of limitation could be waived by a person entitled to rely

                                on it, and consequently if he intended to rely on it, it must be

                                specifically pleaded  under 019 r 16 of the Supreme (High) Court

                                (Civil Procedure Rules, 1954 (LN 140 A), or he must plead such

                                 facts as would evidence an intention to rely on it………………”                   

        The facts of the second case of reference have striking similarities with the facts in the herein appeal.  In that case, FAN MILK LTD. VRS. STATE SHIPPING CORPORATION (1971) 1 GLR 238, a contract was made between the plaintiffs and the defendants that was contained in a bill of lading by which the defendants acknowledged a shipment of goods on board one of their vessels in apparent good order for carriage to and delivery at Tema in like good order.  The bill of lading was made subject to the Carriage of Goods by Sea Act 1924 (14x15 Geo 5 c 22) and the Hague Rules scheduled thereto.  The plaintiffs claimed damages as a result of the goods having been delivered in  a damaged condition.  The defendants raised two preliminary objections inter alia that the action was statute-barred.  The Court held that

                    “(1)   Since the defendants specifically agreed to an extension

                              of time within which the action could be brought and also

                              failed to plead the statute in their statement of defence

                              in accordance with Order 19 r 16 then the ends of justice

                              would not be served by allowing them to amend their

                              pleadings after the close of pleadings.”

         The provision under reference seems to demand strict application.  The point here is that the co-defendants/appellants seek now to argue illegality of contract when no such issue had been pleaded nor canvassed in the trial court to enable the plaintiffs respond to it.  To raise it on appeal therefore satisfies the ingredients of springing surprise on the opponent and the situation of the appellant cannot be ameliorated or salvaged by the compromised stand of Archer JA in ASARE VRS/. BROBBEY & ORS. [1971] 2 GLR 331, where the learned judge held that the provisions of Order 19 rule 16 are not so rigid and inflexible so as to admit of no variations or exceptions.  He however upheld the basic condition that the provision would not countenance springing surprise on the opponent.

        On the whole I find the arguments and submissions of the appellant on the ground of the judgment being against the weight of the evidence not made out and I accordingly

uphold the submissions of the counsel for the plaintiff/respondent and dismiss this

ground of appeal. 

         The next ground of appeal turns on consequences of failure by the consignee to pay

for the goods, and the rights of seizure or transfer that inure to the shipper/seller or owner of the goods, in other words, the consignor. 

          Counsel for the appellants sought in aid a lief from Carver’s Carriage by Sea 13th Edition where the author had stated that “a vendor who has shipped goods, and parted with the bill of lading has still a right, if he remains unpaid, to regain possession of the goods while they are in transit, in the event of the buyer becoming insolvent.”   Further

to this counsel quoted Section 44 of the Sale of Goods Act 1979 which is analogous to the Section 38 of the Ghana Sale of goods Act 1962 (Act 137).  It states

              “38(1) Subject to the provisions of this Act, when a buyer                  

                       of goods becomes insolvent an unpaid seller who has parted     

                       with the possession of the goods has the right of stopping

                       them in transit, that is to say, he may resume possession

                       of the goods as long as they are in the course of transit and

                       may retain them until payment or tender of the price.

  1. A contract of sale is not rescinded by reason only that the seller

                       has exercised his right of stoppage in transit.”

        Section 39 of the Ghana Act (Act 137) shows or delimits the term “transit.”

Counsel in fact relied on the provisions in the Ghana Act 137 that cover the remedies or rights of the seller, Sections 34 through 37; the stoppage in transit, Sections 38 through

48 and summed up that the goods in dispute were primarily consigned by sea from Korea by the three named companies to the plaintiff/respondent in Ghana upon condition that the documents were to be released by the Banks to the plaintiffs as consignee only if he accepted the terms i.e. paid the value of thereof within the specified time.  The plaintiffs however never fulfilled the conditions and have since not produced the documents in respect of the eighteen containers in dispute herein.  Accordingly, the said goods remained in the possession of the carriers, the defendants/respondents herein.  Counsel contended therefore that the goods in the eighteen containers were never delivered to the plaintiffs.  They were therefore still in transit and hence the unpaid consignors could in law take repossession and change the consignee by the reconsigning the goods to another person.

           In response to the above, Counsel for the plaintiffs/respondents argued that only Ilseki Company Limited and Hanla Tyre Company Limited, both of Korea could appropriately stop the goods in transit.  In spite of exhibits 7, 7A, 8 & 8A by which the carriers purported to have changed the consignees, and exhibits 16, 17 and 20 by which the consignors were alleged to have ordered a change of consignees, counsel was of the view that those exhibits were discredited and appropriately rejected by the trial court when the court refused to rely on them.  It was argued that exhibits 16, 17 and 20 could

not have originated from the consignors, and that in any case, they were addressed to Ghana Customs and Excise Services who were not parties to the whole transaction and could therefore not implement any instructions therein contained.  Besides, the response by the Managing Director of Ilseki Company Limited who proceeded to Ghana upon invitation from the plaintiff’s Managing Director negates absolutely any suggestion that the same person had authored, authorised, or effected a change of consignee from the plaintiffs in favour of Seo Kwang (Ghana) Limited.  In any case Seo Kwang (Ghana) Limited when confronted with the plaintiff’s action only bowed out gracefully and failed or refused to contest their alleged right as the new consignee.  The herein co-defendants/appellants have no locus standi in the matter whatsoever.

          In resolving this stage of to appeal, I have studied somehow the relevant portions of Carver’s Carriage of Goods By Sea.  The relevant part of his definition of duration of transit is stated under paragraph (3) and it reads

                “(3)  If, after the arrival of the goods at the appointed destination,

                         the carrier or other bailee (or custodier) acknowledges to the

                        buyer, or his agent, that he holds the goods on his behalf, and

                        continues in possession of them as bailee (or custodier) for the

                        buyer, or his agent, then transit is at an end, and it is immaterial

                        that a further destination for the goods may have been indicated

                        by the buyer.”

           The following is the definition of “transit” given in the Blacks Law Dictionary 6th Edition page 1499 “a stop over privilege on a  continuous journey granted

                               by a carrier by which a break defacto in continuity of

                                carriage of goods is disregarded and two legs of a

                                journey are treated as though covered without interruption,

                                uniting both legs into a through route………”

          The Ghana Sale of Goods Act, Act 137 does not define the word transit.  However, at least two definitions have been provided above which should be related to the evidence on record in order to establish how to categorise the goods in issue.  Referring first to the

definition in Blacks Law Dictionary it is clear that the goods were carried from the starting point in Korea and had reached their final designated destination, Ghana. 

Coming now to Carver’s point of view, the carrier had in fact acknowledged to the                                        

Plaintiffs that he was holding the goods on their behalf.

Constructively therefore, from the moment of the said proclamation or information, the carrier or their agents in Ghana, the defendants herein had become bailees of the plaintiffs.  Transit in law had ended and the goods were deemed to have been delivered to the consignees.  Thus in the case of MABBS CO. Ltd. vrs. RORO SERVICES (GH) Ltd.

(1991) 1 GLR 435, the learned trial judge posed four questions the answers to which would inform his decision in the matter.  The questions  were

  1. Whether the defendants held the goods as bailees of the plaintiff after handing

the captains copies of the bill of lading to Mabbs.

(2)  whether transit had ended at the time of stoppage by Madero.

(3)  Whether Madero was competent to stop the delivery and

(4)   Whether Madero could legally change her instructions to the carrier.  

        The facts seem to be on all fours with the herein case, except that in the case under reference the bill of lading covering the 600 Dunlop tyres made delivery upon  “presentation of our duly indorsed original Container Lines bill of lading.  In answering the first of the four questions above, the judge quoted Section 39(1) and (3) of Act 137 and held that in the circumstance, by the defendants handing the captain’s copies of the bill of lading to Mabbs, they acknowledged to Mabbs that they were holding the tyres as bailees of the plaintiffs, Mabbs.  However, the distinction  between that case and the one before us in this appeal is the condition indorsed on the bill of lading.  Thus transit was deemed not to have ended with the acknowledgement in so far as the original bill of lading had not been presented by the plaintiffs.  In the instant case, the question does not arise.  Furthermore, Section 40 provides for an unpaid seller a right of stoppage in transit.  Who then in the instant case, is the unpaid seller.  The sellers herein are Ilseki Company Limited and Hanla Tyres Co. Limited.

Neither the defendants, Roro Services (Ghana) Limited Seo Kwang; (Gh) Limited; nor the Co-defendants herein whether acting jointly or severally can legally assume the

position of an unpaid seller.  There was overwhelming evidence to disqualify any or all of them to a claim of that right.  Upon the evidence, I accept the trial judges findings and the arguments of Counsel for the plaintiffs/respondents that the goods were not stopped by the actual consignors and that in fact, neither Ilseki Company Ltd. of Korea, nor Hanla                                        

Tyre Company Limited also of Korea sought to stop the goods for non payment nor replace the plaintiffs as consignees.  The appeal fails and I accordingly dismiss it.

           The plaintiffs filed a cross appeal on the failure of the trial judge to award them damages for wrongful detention of the plaintiffs’ goods, the trial court having held that on the evidence at the trial the plaintiffs claim for damages for wrongful detention must fail.  The refusal of this relief was informed by the trial court’s finding that the defendants were instructed by the consignors of the goods to change the consignee.  The defendants had on 25th March 1994 received and acted upon instructions contained in Exhibits 7 and 7A from the consignors and changed the consignee in favour of Seo Kwang (Ghana) Limited and had informed the plaintiffs of the change by letter dated 13th April 1994 (exhibit 10)

          Counsel for the plaintiff has submitted that by 25th March 1994 the defendants had changed the consignee and were therefore not going to release the goods to the plaintiff.  In spite of this fact the trial judge awarded in favour of the defendants ¢134,062,086.00 covering the period up to 31st July 1994.  The contention of the plaintiff herein is  therefore directed to the award of damages in favour of the defendant beyond 25th March 1994. Further to that the plaintiffs contend that upon the trial judge’s finding that the defendants could not have relied upon exhibits 7, 7A, 8, 8A to change the consignee, and since the defendants did not lead any other evidence to justify their act, it means therefore that their replacement of the plaintiffs as consignee was illegal and not justified.

The defendants have resisted the cross-appeal contending that the plaintiffs were not positioned financially enough to pay the charges on the goods and collect them.  The goods arrived in two lots on 22nd July and 14th November1993 respectively and up to 31st July 1994 the plaintiffs had not presented the relevant shipping documents to the

Defendants for their collection.  This was the state of failure on the part of the plaintiffs                                               

who were in any case informed of the arrival of the goods immediately on their arrival.

The defendants further contend that the change of consignee did not take place before 25th and 28th April 1994 when the plaintiffs had not at any prior time presented any bill of lading to the defendants for the collection of the goods.

         One of the most basic principles of our jurisprudence is that a party to an action should not be allowed to take advantage of his own defendant.  Indeed, there is no dispute that the plaintiffs failed to present the relevant documentation to the defendants to collect the goods, thus accruing huge demurrage and administrative and handling charges.  It was only when they were confronted with the likelihood of losing the goods that in desperation they started to fight for the ownership of the goods.  In the meantime the goods had attracted huge administrative and demurrage charges.  In my judgment, and upon the facts and evidence available, the plaintiffs are liable to pay the charges and other bills that had accrued from the arrival of the goods, until the time the defendants replaced them as consignees, that is to say 25th March 1994.  The claim for award of damages for wrongful detention fails on the ground that the plaintiff caused or contributed to it.  The defendants and co-defendants should be liable and bear joint culpability for any demurrage or other charges arising or accruing after 25th March 1994.

            The cross appeal is allowed in part.

 

 

                                                                         G.M. QUAYE

                                                                     JUSTICE OF APPEAL

 

 

I agree.                                                                 B.T. ARYEETEY

                                                                       JUSTICE OF APPEAL

 

 

I also agree.                                                          R.T. ANINAKWA

                                                                         JUSTICE OF APPEAL